COMMONWEALTH OF MASSACHUSETTS EXECUTIVE OFFICE OF

ENERGY AND ENVIRONMENTAL AFFAIRS

DEPARTMENT OF ENERGY RESOURCES 100 CAMBRIDGE ST., SUITE 1020

BOSTON, MA 02114 Telephone: 617-626-7300

Facsimile: 617-727-0030

Charles D. Baker

Governor

Karyn E. Polito

Lt. Governor

Matthew A. Beaton

Secretary

Judith F. Judson

Commissioner

February 22, 2016

Purvi Patel, Analyst

MEPA Office

100 Cambridge Suite 900

Boston, MA 02114

Subject: West Medway II Generating Station FEIR – Stationary GHG Sources, DOER Comments

The general intent of the DOER review of the FEIR is to both ensure that the content submitted conforms

to the guidance provided for the application of the MEPA GHG Policy and Protocol (the Policy) for this

project, as well as with any agreements reached in meetings and/or discussions which took place during

the preparation and prior to the submittal of the FEIR.

GHG Analysis with Revised Baseline (5.2)

Proponent Response DOER-05

This reviewer agrees that the computation of the percent reduction in GHG, as shown in Table DOER -1

in the comment letter, was incorrect due to a drag and fill MS Excel error. The DOER has corrected and

revised Table DOER-1 as follows:

Revised Table DOER-1

Projected Emissions as Function of Capacity Factor and Days on ULSD

Capacity Factor & days on ULSD

Emissions (TPY) % Reduction from Maximum Case

0.6; 30 695875

0.43; 30 505000 27%

0.345;15 394000 43%

0.33;10 377000 46%

February 22, 2016

Medway II Generating Station FEIR

DOER Comments

2

Proponent Response DOER-07

The intent of the conversion of the projected stationary source emissions into the emissions of an

equivalent area of new office building served by the ISO-NE grid and natural gas was to provide a

another way of expressing the absolute magnitude of the projected emissions so that all involved in the

effort to reduce amount of fuel required to meet the expected demand on the plant will recognize the

impact of measures which, though the relative expected reduction in emissions as percentage of the

projected total will be small , could still represent a sizable absolute reduction in tons.

When the baseline is revised per the maximum permitted capacity factor, all of the related values will

increase by 130%.

Table 5-1 Direct Emissions – Baseline and Maximum Potential Operating Scenarios

The revised baseline, as shown Table 5-1, and discussed in Section 5.2 of the FEIR does not include the

revision to the baseline from what was shown in the DEIR, based on a capacity factor of 33%, to one

based on a capacity factor of 43% (505,000 TPY) as was agreed to by the proponent in the pre-file consult

meeting for the FEIR which took place on Dec. 17, 2015 at the MEPA offices. Insufficient details were

provided in the DEIR, during the meeting, and in this FEIR to support selection of a 33% capacity factor

for the baseline case. As such the baseline case in Table 5-1 should be revised to be based on maximum

allowed by the air permit which is 505,000 tons based on a three-year rolling average capacity factor of

43%.

The DOER recommends against certification of the FEIR unless and until the previously agreed upon

revision of the baseline case to be based on a 43% capacity factor and 30 days of ULSD, as discussed

above, has been accomplished and submitted

Effect of Pilgrim Nuclear Shutdown (5.2.)

The information in this section appears to be at odds with the conclusion stated in a in a copy (provided

by the proponent) of the response by the proponent to the Energy Facilities Siting Board information

request EFSB-A-61 in which it was stated that the impact of the Plymouth station retirement would likely

be an increase in the operating hours of the proposed West Medway II plant.

Mitigation:

Additional comparison to other generation technologies (5.3)

Minimum Standards for Project Needs (5.3.1) :

This section insufficiently distinguishes between needs (requirements) that are set by external agencies

such the ISO-NE or FERC, and those that are set by the proponent’s commercial interests.

A plant that is permitted to operate at a 43% three year rolling average capacity factor will not be limited

by regulation to be operated as a conventional peaking plant. Therefore it is entirely possible that the as-

proposed plants will combust more fossil fuel and emit more GHG due to its lower efficiency over its life

than would a Flex plant for the same MWHs generated. In the absence of a detailed dispatch model to

February 22, 2016

Medway II Generating Station FEIR

DOER Comments

3

support statements as noted throughout, the DOER concludes that the impacts form a 43% three year

rolling average capacity factor limit are appropriate for this analysis.

With regards to item (2) , the DOER agrees the information on the reliability of a potential plant is very

important. In conjunction with the review of this project, the DOER has requested that Siemens provide

data on the operating availability of their Flex plant fleet. To date this data has not been forthcoming.

General Combined Cycle Technology (5.3.2):

Although the DOER agrees with most of the information in this section, the DOER suggests that the

proposition that a conventional combined cycle plant could not sufficiently meet the fast start, multiple

cycle and fast ramping type of performance as proposed for this station is somewhat of a “straw man”

argument.

Siemens Flex-Plant Specifically (5.3.3)

The DOER agrees that the lack of detailed reliability data from Siemens presented at very substantial

barrier to the selection of a Flex plant for registration in the ISO-NE pay for performance and forward

capacity markets.

However, because the nominal nameplate efficiency provided by Siemens to the DOER of the Flex Plant

when operating with an air cooled condenser is 50%, which is a substantially better than that of the GE-

LM100, the DOER also has comments related to some of the points made in this section.

The statement is made, without supporting data, that these plants have a “limited history”. A general

statement such as this should be supported with data, such as MWHs, full load equivalent run hours, or

some other relevant data. For example, the fact that the operating fleet of these plants may run at a

substantially higher capacity factor than the average GE LM-100 could mean that the actual difference in

operating history may be less than would be assumed if solely based on the number of operating plants.

The statement is made that the ten minute cold start to 150 MW is less than the 200 MW as required by

the proponent. As stated previously, given that proponent stated that detailed dispatch modeling was not

performed by the proponent, the DOER questions how this assertion can be supported. This concern also

applies to the assertion that a ramp rate of 30 MW per minute would not be commercially viable.

The conclusion that a Flex plant is inherently more prone to failure from thermal stresses is unsupported

by any details or data. This in particular as as Siemens stated that a specific objective of the Flex plant

design is to provide a combined cycle plant that can be operated with multiple starts and stops without

decreasing the plant’s operational life.

Given the permitted capacity factor, it is possible that, for the same MWHs generated, the as-proposed

plants will combust more fossil fuel and emit more GHG due to its lower efficiency over its life than

would be the case for a Flex plant.

The paragraph in which the conclusion is reached that the weighted average efficiency of the Flex plant

would be substantially less than the as-proposed GE-LM100S when integrated over its life under that as-

proposed operating scenario does not include the following relevant information to fully support this

claim:

February 22, 2016

Medway II Generating Station FEIR

DOER Comments

4

The average partload efficiency of the GE-LMS100, both when ramping up and when operating

at 150 MW.

The % of power sharing between the CTG and the steam turbine generator the part load

efficiency of the plant after reaching 150 MW and subsequently ramping up and down while

operating in the combined cycle mode.

Clarified Comparison to Other Combustion Turbines (5.4)

The DOER commends the project for the quality and detail of the information provided in this section, particularly

for the analytical effort reflected in the information shown in Table 5-3.

Opportunities to Reduce GHG Emissions through Plant Design (5.5)

Pressure Drop Minimization (5.5.1); Evaporative Cooling (5.5.2); Ammonia

Vaporization (5.5.3)

The DOER acknowledges and commends the proponent on the amount as well as the level detail of the

relevant information provided in these sections.

Transformers (5.5.4) :

The information provided did not clearly identify any of the options shown as the “ most efficient

available GSU transformer in the class to be used at the Medway II plant” as was called out in the DOER

comments to the DEIR, where efficiency is understood to imply the least losses per MHW transformed.

Building Related Stationary Sources (5.7)

Heating (6.7.1.5)

The DOER commends the project for the commitments made in this section to heat with either propane,

natural gas, or cold-climate air source heat pumps, The DOER reminds the project that air source heat

pumps are a technology that is currently included as being eligible for incentives under the addition of

renewable thermal energy technologies to the Mass. Alternative Energy Portfolio Standard (APS), which

is currently under development and review. For further details, please check the website of the MA

DOER or contact John Ballam (617 626 1070) at the DOER.

Up-dated On-site Solar Analysis (5.8)

The FEIR did not include an assessment of the opportunity to site a ground mounted solar PV system in

the northeastern portion of the Medway site, to the east of the gas transmission line. The net useful space

in this location appears to be larger than 100,000 sf.

Regarding the claim the solar PV solar system capital and operating costs included in the DOER financial

model are too low by whole number factors, the DOER model costs are based on a large amount of cost

data as reported by actual Massachusetts solar PV energy projects.

February 22, 2016

Medway II Generating Station FEIR

DOER Comments

5

Up-Dated Summary and Commitments (5.10)

Table 5-17 Baseline and Proposed Summary: As addressed in an earlier comment, the proponent had previously

agreed to revise the emissions for the CTG based on a three year rolling average capacity factor or 43%. This table

should be revised accordingly.

. John Ballam

John Ballam

Engineering Manager

CHP Program Manager

MA Dept. of Energy Resources

cc: Arah Schuur

Ian Finlayson

Charles River Watershed Association 190 Park Road Weston, MA 02493 t 781 788 0007 f 781 788 0057 e charles@crwa.org www.charlesriver.org

Email and Mail March 10, 2016 Matthew Beaton, Secretary Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Attn: Purvi Patel, MEPA Office

Re: Final Environmental Impact Report, West Medway II, EOEEA No. 15363 Dear Secretary Beaton: The Charles River Watershed Association (CRWA) submits the following comments on the Final Environmental Impact Report (FEIR) for the above project. We are very familiar with this project having intervened and been granted full party status in the Energy Facilities Siting Board (Siting Board) proceedings. The Siting Board evidentiary hearings concluded on January 28, 2016 and the numerous environmental impacts of the proposed project have been fully briefed by the parties. CRWA intervened in the Siting Board proceeding because of our concern about the impacts of the proposed project on water resources. The proponent has failed to minimize and mitigate its damage to the environment to the maximum extent practicable, and for this reason, a supplemental Environmental Impact Report is required. Water Resources To meet the facility’s water demand for NOx control, the proponent intends to withdraw water from an onsite bedrock well and to purchase water from the Town of Millis. The proposed facility’s water use for pollution control is 100% consumptive—none of which will be returned to groundwater. The proponent intends to withdraw 52, 000 gpd from the onsite well and seeks to purchase 48,000 gpd from the Town of Millis (43,366 + 10% safety factor=47,703 gpd). The proponent’s water use estimates have varied considerably throughout the Siting Board proceeding and in MEPA review. While the proponent provides water demand volumes in Table 8-1 for operating at 33% capacity using oil 10 days per year, nowhere is it committing to operate under this scenario. Absent a binding mitigation commitment by the company to operate under this scenario only, which is then incorporated into the section 61 findings and the operating permit, MEPA review is properly based on what the proponent is seeking in its permit, namely, to operate at 60% capacity in one year of a three

Charles River Watershed Association 190 Park Road Weston, MA 02493 t 781 788 0007 f 781 788 0057 e charles@crwa.org www.charlesriver.org

year rolling average and to operate on oil up to 720 hours (30 days) in every year.1 Case 1 in Table 8-1 of the FEIR shows that when operating at 60% capacity, the facility will require 95,206 gpd of water. Case 3 in Table 8-1 is inaccurate because it shows water demand operating at 34.5% capacity with 15 rather than 30 days on oil per year. Exelon does not provide an explanation for this in the FEIR.2 Importantly, the highest water use months for the proposed facility are June through August, coinciding with both the months of highest water use by the municipalities in the upper watershed—all of which withdraw from groundwater wells, and the critical months when streamflow is most impacted by withdrawals. Exelon now says that at 60% capacity in July and August, its water demand will be 107,025 gpd, with 52,000 gpd supplied by the onsite well and 55,000 gpd from the Town of Millis. FEIR at Table 8-2.3 Maximum day water demand firing on oil under all operating scenarios will be 178,600 gpd. Peak

summer day demand is 138,240 gpd. If the onsite well is not operational, the proposed facility will be seeking the full amount daily from Millis’ public water supply.4 Millis has not made a decision whether to sell water to the facility. No purchase and sale agreement exists today, nor is there an inter-municipal agreement between Millis and Medway for delivery of water from Millis through Medway’s water distribution system. The peer-reviewed science developed in the Sustainable Water Management Initiative (SWMI) by the U.S. Geological Survey and MA Division of Fisheries and Wildlife clearly establishes that withdrawal impacts are both cumulative and local, that the summertime impacts from water withdrawals in the upper watershed are severe and that riverine fluvial fish have been decimated in the subbasins from which Exelon is seeking water. The SWMI science is not solely applicable to Water Management Act (WMA) withdrawals, nor should MEPA view it as such. Indeed, the onsite well will not require a WMA permit, and MassDEP apparently is not intending to exercise its authority here to approve, or disapprove, the sale of water by a town to a facility in another town. We frankly think this is unwise, particularly given the water needs of other communities in this region, but it also underscores the importance of MEPA review here. Under the SWMI Framework and using the MassDEP permitting tool, the three subbasins from which the facility’s water would be supplied are already significantly stream-depleted by water withdrawals and the

1 Operation on oil in addition to increasing the NOx emissions significantly, increases water demand by 15%.

2 The water use volume in Table 8-2 at “34.4 capacity” presumably is also based on 15 days of oil use. Because it cheaper to

operate on oil, the decision of how many days to operate on oil is an economic decision. The company has committed not to use oil in the summer months. 3 Previously, in filings with the Siting Board, the proponent estimated its July and August daily demand at 120,400 gpd.

4 The proponent proposed that in times of drought or when Millis is unable to meet the facility’s water demand , it will truck

in water from either Johnston, RI or a well in Northbridge, MA. The Johnston, RI source cannot supply more than 40,000 gpd—not enough to meet the facility’s water demand at 60% capacity and clearly not enough to meet peak day demand. Access to the Northbridge source, which is in the Blackstone River Basin, would require an Interbasin Act approval from the Water Resources Authority (WRC). See, 313 CMR 4.00 The greenhouse gas analysis does not include an analysis of trucking water from these locations. It also presupposes that in times of drought, water from these other sources will actually be available.

Charles River Watershed Association 190 Park Road Weston, MA 02493 t 781 788 0007 f 781 788 0057 e charles@crwa.org www.charlesriver.org

corresponding fisheries impacts are severe. The two subbasins from which Millis withdraws (subbasins #21133, 21123) are classified as groundwater category (GWC) 5 and 4 and biological category (BC) 5, or the most impacted subbasins on the SWMI 1-5 classification scale. Withdrawals in Subbasin 21133 and 21121 have decreased August streamflow by more than 60% and 49%, respectively. The Medway subbasin 21158 in which the facility’s onsite well is located classified as GWC 4 and BC 5; August median streamflow today is reduced by 30% due to water withdrawals. As you can see from the attached subbasin map, the entire Upper Charles River watershed is highly impacted by water withdrawals. Increased withdrawals to meet the proposed facility’s demand will further degrade these subbasins.5 Proposed Mitigation The proponent would like any mitigation to be the responsibility of the Town of Millis under its WMA permit once it exceeds its WMA baseline volume of 0.80 mgd. MassDEP recognized in its comments on the DEIR that Millis will likely need to mitigate its withdrawals.6 But whether Millis will in the future have to mitigate its withdrawals above baseline, doesn’t address the impacts of the proposed facility’s water demand and mitigation of those impacts now and in the context of MEPA review.

The proponent’s proposed mitigation for “water supply” in Table 11-1 of the FEIR, is first, that the facility will operate at a “maximum 60% capacity in a given year subject to a limit of 43% capacity factor on a three-year rolling average.” Using a three year rolling average of 68,800 gpd, which flattens out the facility’s water use to 25.1 million gallons per year, is misleading and does not paint a true picture of withdrawal impacts. In one year at 60% capacity the facility will use 34.8 million gallons of water. Moreover, operating at 43% capacity is not a mitigation measure: the facility is limited to this under EPA

5 Millis’ public water supply wells are in shallow sand and gravel aquifers and located close to surface waters and wetlands.

Pumping of these wells will have a pretty rapid response rate to stream depletion; even under the most optimistic scenario, annual withdrawals from these wells will equal annual stream depletion, as Nigel Pickering, Horsley Witten Group and former Senior Engineer at CRWA, testified before the Siting Board. Dr. Pickering also testified that the onsite bedrock well “will have the same average effect on the river as shallower wells”; “the overall impact of the onsite well on streamflow will approximate the average withdrawal rate over time.” 6 Until Millis has a water needs forecast performed by DCR and its permit is revised, its withdrawals cannot exceed 0.80

mgd—its current WMA permitted withdrawal volume. The Kleinfelder Millis report, Draft Water Supply and Demand Assessment in Relation to Exelon Power West Medway II Project, December 15, 2015, projects that currently permitted projects in Millis will require an additional 135,000 gpd—this volume already reflects an adjustment to Title 5 flows, contrary to the proponent’s claim in the FEIR at 8-9. Adding in the 45,000 gpd West Medway II demand would increase the Town’s withdrawals to .872 mgd, or 72,000 gpd above baseline. This is without including a 40,000 gpd “downtown reserve,” which the town desires. We note that Kleinfelder erroneously concluded in its second report, Minimization & Mitigation Implementation Analysis Town of Millis (Jan. 2016) (Task 3 report) that the Town may not need to perform any mitigation because it would get a “credit” for the difference between its current residential use of 57 RGPCD and the 65 RGCPD performance standard and because the town’s population may decline in the future. Millis has no requirement to mitigate until it exceeds it baseline. Its withdrawals currently are about 0.69 mgd. Moreover, unlike the SWMI Framework where the biological and groundwater withdrawal categories are closely correlated, there is no environmental component to the baseline.

Charles River Watershed Association 190 Park Road Weston, MA 02493 t 781 788 0007 f 781 788 0057 e charles@crwa.org www.charlesriver.org

New Source Review. And the facility’s peak monthly water use will occur in July and August at precisely the time when flows in the Charles and its tributaries are quite low.7 The proponent also contributed $40,000 to Medway for leak detection work when it was originally seeking to buy water from Medway. While this will reduce Medway’s unaccounted for water (UAW), Medway’s system remains above the 10% or less UAW performance standard. Moreover, this leak, based on the town’s leak repair work order, which CRWA introduced into evidence before the Siting Board, was below both a sewer pipe and drain culvert and because no outfalls were flowing fast, Tom Holder, Medway Director of Public Services, suspected it was probably going back into the ground and the groundwater, rather than to the river. Consequently, this leak did not result in a groundwater loss in this subbasin. Exelon also says that the $50,000 it contributed for the Kleinfelder Task 3 report should be considered as mitigation. Id. However, while stormwater recharge and I/I removal could be performed in Millis, Exelon has not offered to pay for any direct mitigation measures identified in the report. Paying for a report that Millis insisted be included as part of Kleinfelder’s feasibility assessment to help it decide whether to sell water to the facility is simply not, by itself, mitigation. Recognizing that the proponent should do more to mitigate its water impacts, and based on MassDEP’s DEIR comments, in your DEIR certificate you instructed the proponent to:

work with the Town [of Millis] to identify existing and potential mitigation measures. These may include stormwater recharge work in Millis, evaluating efforts to exceed the stormwater management requirements at the project site, 8

land conservation and preservation efforts, habitat improvement efforts such as dam or flow barrier removal, or culvert replacement . . . The Town of Medway will need to make additional improvements to its infrastructure to address leaks in its system to ensure compliance with the 10 percent Unaccounted for Water (UAW) WMA permit standard which it currently exceeds. Medway's Master Plan recommends replacement of water mains to eliminate pipes prone to leakage. The Proponent should continue to evaluate options to assist Medway in resolving issues with its distribution system to allow the Town to be in compliance with the UAW standard and Residential Gallons Per Capita a Day (RGPCD) standard of 65 gallons/capita/day. In addition to providing funding assistance for energy conservation, the Proponent should also consider providing funding.to Medway for water conservation outreach and awareness.

DEIR Certificate at 23. The proponent has made no commitment to funding any of these measures.

7 While the proponent also says that daily average water use is expected to be 51,900 gpd, FEIR 11-15, this should be viewed

with skepticism. This neither comports with its stated 68,800 three-year annual rolling average water demand, nor does it account for the increased demand when operating at 60 percent capacity in a single year. 8 The proposed facility will recharge 7,700 gpd beyond the recharge volume required under the MassDEP Stormwater

Standards.

Charles River Watershed Association 190 Park Road Weston, MA 02493 t 781 788 0007 f 781 788 0057 e charles@crwa.org www.charlesriver.org

There are numerous opportunities to recharge stormwater in both Millis and Medway and to reduce inflow and infiltration in sewer pipes. Additionally, Medway’s residential use is high at 77 RGPCD and UAW remains above 10 percent. Kleinfelder points out that despite Millis’ fairly low residential water use, estimated savings by providing homes with low flow devices would be “significant.” Mllis also has not retrofitted all of its public building with low flow devices, and specifically its schools, as required in its WMA permit. For the reasons discussed above, a supplemental EIR should be required. CRWA also joins Conservation Law Foundation’s FEIR comments. Sincerely,

Margaret Van Deusen Deputy Director and General Counsel cc: (via email)

Deirdre Buckley, MEPA Beth Card, MassDEP Marielle Stone, MassDEP

Charles D. Baker Governor Karyn E. Polito Lieutenant Governor

Matthew A. Beaton Secretary

Martin Suuberg Commissioner

This information is available in alternate format. Call Michelle Waters-Ekanem, Diversity Director, at 617-292-5751. TTY# MassRelay Service 1-800-439-2370 MassDEP Website: www.mass.gov/dep

Printed on Recycled Paper

March 11, 2016

Secretary Matthew A. Beaton

Executive Office of Environmental Affairs

100 Cambridge Street, 9th

Floor

Boston, MA 02114

Attention: MEPA Unit – Purvi Patel

Re: Final Environmental Impact Report (FEIR)

West Medway II

Medway

EEA # 15363

Dear Secretary Beaton,

The Massachusetts Department of Environmental Protection's (“MassDEP”) Central Regional

Office (CERO) has reviewed the FEIR for the proposed West Medway II Project in Medway (the

“Project”). The Proponent proposes to construct a new 200 MW electric power generation plant that

would operate during times of peak energy demand and would run primarily on natural gas. This Project

will include two simple cycle GE LMS electric combustion turbines (CTGs); pollution control equipment;

two 160-foot-tall exhaust stacks; natural gas compressors; transformers; above ground storage tanks for

diesel fuel, water, and aqueous ammonia; an approximately 15,700 square foot building for a control

room, warehouse area, and water treatment area; and stormwater management systems including

infiltration basins. Natural gas will be delivered via an interconnection to the existing Algonquin Gas

Transmission (AGT) Company pipeline.

The Project is proposed within a 94-acre parcel owned by the Proponent on which it currently

operates a 135 MW power plant. The Project will alter approximately 15 acres of land and will create 4.3

acres of impervious area. Additionally, the Project will impact 20,562 square feet (sf) of Riverfront Area;

temporarily alter 1,241 sf of Bordering Vegetated Wetland (BVW) and 734 sf of Isolated Vegetated

Wetland (IVW); and 78,462 sf of Buffer Zone. Some resource areas are temporary.

The maximum annual average daily water usage for the Project has been reduced from the proposed

ENF amount of 190,000 gallons per day (gpd) for process to approximately 95,206 gpd. The Project has

very limited increased sanitary wastewater flow, on the order of approximately 120 gpd (six operations

employees). In combination with sanitary flows from the existing plant (240 gpd), the new sanitary

MassDEP Comments – EEA# 15363

Page 2 of 6

discharge to the Medway sewer system would be approximately 360 gpd. The Project will also have

limited process wastewater flow of approximately 5,000 gpd. The Project is subject to the MEPA

Greenhouse Gas Emissions Policy and Protocol.

This Project is under MEPA review because it meets or exceeds the following review thresholds:

11.03(1)(b)(2) – Creation of five or more acres of impervious area;

11.03(1)(b)(4) – Conversion of land in active agricultural use to nonagricultural use;

11.03(7)(a)(2) – Expansion of an existing electric generating facility by 100 or more MW;

11.03(8)(b)(2) – Modification of an existing major stationary source resulting in a "significant net

increase" in actual emissions, provided that the stationary source or facility is major for the

pollutant, emission of which is increased by: 15 tpy of PM as PM10; 100 tpy of CO; 40 tpy of

SO2; 25 tpy of VOC or NOx; 0.6 tpy of lead.

The Project will require three permits from MassDEP: Major Comprehensive Air Plan Approval (BWP

AQ03), Prevention of Significant Determination, and Title V Air Operating Permit (BWP AQ14). If the

local Order of Conditions from the Medway Conservation Commission under the Wetlands Protection

Act is appealed, MassDEP may issue a Superseding Order of Conditions.

According to the Certificate of the Secretary of Energy and Environmental Affairs on the Draft

Environmental Impact Report (“DEIR”) issued on November 13, 2015 (the “Certificate”), because the

Project requires review and approval by the Department of Utilities and the Energy Facilities Siting

Board, subject matter jurisdiction equivalent to broad scope jurisdiction, in accordance with 301 CMR

11.01(2)(a)(3). Therefore, MEPA jurisdiction extends to all aspects of the Project that are likely,

indirectly or directly, to cause Damage to the Environment as defined in the MEPA regulations.

Environmental Justice

The Proponent has continued to provide enhanced public outreach to EJ populations in Milford

and Franklin during the FEIR process. The FEIR was provided to town offices and public libraries in

Medway, Millis, Bellingham, Milford, and Franklin. Additionally, the Town of Medway’s website

includes information on the Project.

Alternatives Analysis

In accordance with the Certificate on the DEIR, the Proponent provided a further comparison of

the No Build Scenario, the Proposed Project at Medway, and a theoretical 200 MW simple-cycle project

to Exelon’s Mystic Station in Everett, MA. The Proponent was also directed to describe and compare the

environmental impacts of both the alternative and preferred routes for the pipeline connection with the

Spectra/AGT interstate mainline.

The Proponent has provided an alternatives comparison in Table 2.3 of the FEIR. This

comparison includes the No-Build Alternative, a 200 MW expansion of the Everett site, and the Preferred

Alternative (West Medway). Since the submittal of the DEIR, the Proponent has also continued to

evaluate the potential interconnection route. The FEIR’s preferred route minimizes wetlands impacts and

avoids private landowners’ property by utilizing existing utility rights-of-way.

MassDEP Comments – EEA# 15363

Page 3 of 6

Land Alteration

The Certificate scoped the Proponent to clearly identify in narrative and on Project plans the

increase in land alteration to 13.5 acres and the reduction in impervious area to 4.3 acres. As reported in

the DEIR, the permanent Project facilities, as well as construction laydown and construction parking areas

were located within a 13-acre fenced area. As planning and design efforts for the Project have

progressed, the fence line has been adjusted to incorporate the 0.9 acre construction stage office/trailer

and the 2.5 acre equipment laydown area. As a result, the FEIR notes that the fenced site area has

increased from 13 acres to 15 acres. Once the construction has been completed, the 3.5 acre of temporary

laydown and parking will be restored to grassed fields.

The Proponent’s ongoing engineering and design work resulted in a reduction in impervious area.

The estimated seven acres of impervious area noted in the ENF has been reduced to 4.3 acres. This is a

result of a decision to finish the main plant area in pervious crushed stone.

Air Quality

As noted in the FEIR, on January 26, 2016 MassDEP provided the Proponent with comments based

on its technical review of the Comprehensive Plan Application and the Prevention of Significant

Deterioration application. Since that time, the Proponent has responded to those comments as well as

additional letters from MassDEP related to the ongoing technical review of the applications. The

Proponent and MassDEP are meeting weekly to discuss the information necessary for MassDEP’s

determinations on the permit applications. The Proponent has provided MassDEP with proposals for

noise reduction at both the existing facility and the proposed Project, such as limits on hours of operation

and equipment enclosures, which MassDEP will incorporate into the permits as enforceable restrictions.

MassDEP has requested additional technical justification for the Proponent’s proposed emission limits on

air pollutants (CO, NOx, and ammonia), that is, determinations of Lowest Achievable Emission Rate and

Best Available Control Technology; the number of hours and conditions under which burning oil is

allowed; and the balance of noise and air pollutant emissions with greenhouse gas emissions (see the

discussion in FEIR Section 5.5.1).

MassDEP makes the following suggestions to aid in selecting lighting that is energy and cost

efficient, yet ensures safety and security, protects wildlife and promotes the goal of dark night skies.

These include fully shielded fixtures that emit no light upward; “warm-white” or filtered LEDs

(Correlated Color Temperature < 3,000 K) to minimize blue emission; products with adaptive controls

like dimmers, timers, and motion sensors; dimming or turning off the lights during overnight hours; and

lighting only the exact space and in the amount required for particular tasks.

Climate Change Resiliency and Adaptation

The Certificate on the DEIR scoped the Proponent to provide a more comprehensive response to

discuss the potential vulnerabilities of the Project site and facility associated with the effects of climate

change, including more frequent and intense storms and increases in temperature. The FEIR identified

that the Project site is located at an elevation of 201 feet. A portion of the Project site in closest proximity

to the flood plain of Hopping Brook and the Charles River is approximately 15 feet above the flood plain

elevation. The Proponent has indicated that the entire facility will be of robust utility grade construction

MassDEP Comments – EEA# 15363

Page 4 of 6

and that the potential changes associated with Climate Change (increases in current high summer

temperatures and increased frequency of severe weather) are within the design tolerances of the Project.

Wetlands and Stormwater

The cumulative proposed impacts to wetland resources vary between the DEIR and the FEIR, as

seen in the table below:

Temp. IVW1

(sq. ft.)

Temp. BVW2

(sq. ft.)

Permanent

BVW (sq. ft.)

Buffer Zone

(sq. ft.)

Riverfront

Area

(sq. ft.)

ENF none reported none reported none reported not quantified 5,500

DEIR none reported 1975 0 51,098 14,941

FEIR 734 1564 206 78,462 20,562 1IVW (Isolated Vegetated Wetland)

2 BVW (Bordering Vegetated Wetland)

While the variation in IVW and BVW numbers is explained in Section 7.1, the increased impacts

to Riverfront Area and Buffer Zone are not discussed anywhere in the FEIR.

The FEIR provides an evaluation of the use of directional drilling to minimize wetland impacts

from the gas pipeline interconnection and the 115 kV transmission line interconnect. The FEIR indicates

that safety concerns related to directional drilling within close proximity to the existing plant and existing

gas lines are the primary reason why this technology is not suitable for the proposed Project. Wetland

impacts enumerated in the FEIR allow for 50-foot wide construction areas at the locations of the proposed

pipeline crossings. The Proponent states that they may be able to reduce the width required to construct

the crossings by staging equipment beyond the BVW. MassDEP recommends that Exelon modify the

width of the construction area prior to submitting a Notice of Intent (NOI) to the Medway Conservation

Commission.

The FEIR provides additional information describing how the stormwater management system

will comply with the Massachusetts Stormwater Standards, and how TMDLs were calculated. MassDEP

expects that the Proponent will finalize the Stormwater Management Report prior to submitting an NOI to

the Medway Conservation Commission. Contrary to BMP criteria contained in the Massachusetts

Stormwater Handbook and in MassDEP’s comments on the DEIR, the Project design still sites infiltration

basins and bioretention areas in areas that Exelon will use for construction parking, laydown areas, and

temporary sedimentation basins. The FEIR describes procedures to retain the functionality of the

infiltration basins and bioretention areas despite the potential for adverse impacts to these areas during

construction. The Medway Conservation Commission and MassDEP will review these measures

comprehensively during the NOI review process and may impose conditions to avoid potential adverse

impacts.

Water Supply

The FEIR includes a draft “Minimization & Mitigation Implementation Analysis” prepared by

Kleinfelder which outlines potential mitigation measures for the Town of Millis. Mitigation plans are

intended to be living documents that will be updated as necessary over the course of the Water

Management Act (WMA) Permit term. The Kleinfelder Report suggests that Millis may be planning to

MassDEP Comments – EEA# 15363

Page 5 of 6

avoid mitigation by not only continuing to use Residential Gallons Per Capita a Day (RGPCD) and

Unaccounted for Water (UAW) values below the state standards but also by reducing them slightly in the

future. The Department encourages Millis to plan for such efficiency in the future to avoid exceeding the

baseline trigger for implementing mitigation. This adaptive approach encourages Millis to plan to use

less now, while allowing for a course correction in the future should demand management not achieve the

savings projected. A mitigation adjustment for wastewater that is disposed of through septic systems or

groundwater discharges is allowed and should be quantified if necessary in the future. MassDEP will

work with Millis on assigning mitigation credits for the projects identified in the analysis.

The FEIR has explained in detail the water storage capacity for the facility and has identified two

potential bulk water companies as backup sources in the event of unforeseen conditions that would

deplete the supply. Riverdale Water Company in Northbridge, Massachusetts is permitted through the

WMA program to withdraw 0.76 million gallons per day (MGD) as an annual average. Annual reports

submitted to MassDEP by Riverdale indicate recent withdrawals of less than 10,000 gpd, therefore, there

is sufficient quantity from Riverdale for the Project. MassDEP notes, however, that purchasing water

from a source in Northbridge may be subject to the Interbasin Transfer Act. The other water company is

located in Rhode Island and is not regulated by MassDEP. The FEIR also notes that the Proponent

intends to install a redundant water supply well; that well may be able to meet unforeseen conditions.

The FEIR has demonstrated that the Towns of Millis and Medway can reasonably provide and

distribute water to the Project in compliance with applicable regulations and permits. However, the FEIR

did not evaluate options to assist Medway in resolving issues with its distribution system to allow the

Town to be in compliance with the UAW standard and RGPCD standard of 65 gallons/capita/day.

Although the Project’s water demand will be supplemented with supply by Millis, the water will travel

through Medway’s distribution system. At a minimum, there should be a commitment from Exelon to

support regular leak detection surveys in accordance with WMA requirements to identify and repair

quickly any leaks discovered along Medway’s distribution piping from Millis to Exelon.

Wastewater

The site will have two small pump stations to pump the estimated 360 gpd of sanitary sewage to

the Medway sewer system. The first small pump station will be at the existing building and will replace

the current Title 5 system. This pump station will pump to a second pump station near the new building.

This second pump station pumps to an on-site manhole and then flows by gravity into the existing sewer

line on West Street in Medway.

In addition to the 360 gpd of sanitary sewage generated by the workers, the Project will generate some

“non-sanitary wastewater.” Some non-sanitary wastewater is from the equipment drains and other non-

storm drains from the power block, the gas yard, and the Control/Admin facility. These will all drain to

an underground oil/water separator and to the sewer pump station. If these drains are outside, then during

rain storms this could produce significant amounts of flow. The rest of the non-sanitary wastewater is

demineralized rinse water coming from the demineralizing treatment system that treats the drinking water

to a high purity water. The volume of this water is expected to be small and the Proponent has

represented that it will not contain pollutants.

Due to the potentially unknown volumes of water that may need to be pumped to the sewer, the

second pump station must be sized properly to handle all flows and must contain a flow meter. It is

MassDEP Comments – EEA# 15363

Page 6 of 6

recommended that the second pump station could have an overflow tank for high flow periods if it does

collect stormwater. The Proponent must be responsible for the operation and maintenance of the two

pump stations. The amount of flow pumped should be monitored and the pump stations should be

connected to back-up power. The underground oil/water separator should be visible for inspection and

maintenance and cleaning.

Construction and Demolition

MassDEP agrees with the statements in Section 4.4 of the FEIR that until construction contractors

are chosen, it is not possible to list the emission control equipment installed on each piece of construction

equipment. A list of construction equipment and the emissions control technology should be provided to

MassDEP as soon as practicable. MassDEP suggests that off-road construction equipment be equipped

with the newest control emissions technology available.

Mitigation and Section 61 Findings

The Air Quality section of Table 11-1 in the FEIR, “Summary of Impacts and Mitigation

Measures” only lists the impact posed by nitrogen oxides emissions. In order for MassDEP to find that all

feasible measures have been taken to avoid or minimize the damage to the environment, this section

should have included the potential impact from each pollutant emitted from the facility and the proposed

Mitigation Measures for each pollutant that will be included in the air quality permits.

MassDEP appreciates the opportunity to comment on the proposed Project. If you have any

questions regarding these comments, please do not hesitate to contact Stella Tamul, Central Regional

Office MEPA Coordinator, at (508) 767-2763.

Very truly yours,

Mary Jude Pigsley

Regional Director

cc: Commissioner’s Office, MassDEP

March 11, 2016

By U.S. and Electronic Mail

Matthew Beaton, Secretary

Executive Office of Energy and Environmental Affairs

100 Cambridge Street, Suite 900

Boston, MA 02114

Attn: Purvi Patel, MDEP Analyst

Re: West Medway II, EEA No. 15363

Final Environmental Impact Report

Secretary Beaton:

CLF1 submits the following comments on the Final Environmental Impact Report for the

West Medway II Project, EEA No. 15363 (the “FEIR”).

As is explained in more detail below the Project Proponent’s environmental impact

analysis remains inadequate, such that its FEIR cannot be properly certified unless

extensively supplemented. The FEIR has not corrected the serious deficiencies identified

by CLF and others in the DEIR regarding Project alternatives and regarding the Project’s

reasonably foreseeable GHG emissions and related climate impacts. Proponents have

tried to address these deficiencies by simply re-labeling a few tables and by repeating the

same un-supported assertions under new paragraph headings. But the deficiencies

identified in the DEIR—that still remain in the FEIR—cannot be addressed superficially:

they require genuine analysis capable of meaningfully informing public decision-makers

as the law plainly requires.

Accordingly, the FEIR may not be certified in accordance with MEPA unless and until

the Proponent files supplemental FEIR analysis (see 301 C.M.R. 11.07) with additional

data and analysis to remedy these defects.2

1 Unless otherwise defined, capitalized terms herein have the same meanings given them in CLF’s Nov. 6,

2015 comments on the Project DEIR and/or in Proponent’s DEIR or FEIR. 2 CLF also joins in, and hereby re-asserts as if incorporated herein, the Mar. 10, 2016 comments of Charles

River Watershed Association regarding additional deficiencies in Proponent’s FEIR.

Page 2 of 11

Proponent’s Alternatives Analysis Does Not Comply with the Law.

The FEIR’s alternatives analysis remains deficient. Proponent now includes a table in

their alternatives analysis, but Table 2-3—together with most of the FEIR’s Section 2.0

text—still does not adequately address the requirements of 301 C.M.R. 11.07(f).

The law requires that a project proponent present a “description and analysis” of “all

feasible alternatives” to the Project “including, but not limited to those indicated in the

[ENF-identified] Scope.” 301 C.M.R.11.07(f)(1) (emphasis added); accord 301

C.M.R.11.07(f)(3), (4) (requiring analysis of, and in comparison to “feasible

alternatives”). It further requires that Proponents present a “description and analysis” of

“the no-built alternative” for the express “purpose of establishing a future baseline” in

relation to which “the Project and its [feasible] alternatives can be described and analyzed

and its potential environmental impacts and mitigation measures can be assessed.” 301

C.M.R.11.07(f)(2) (emphasis added).3

But the FEIR presents no feasible alternative to the Project, and fails to provide sufficient

environmental impact data about any alternative (including the “no-build alternative”)

such that the Secretary, or any other a decision-maker, could meaningfully compare those

impacts to the Project’s impacts in accordance with 301 C.M.R. 11.07(f), (k).4

The FEIR’s No-Build Alternative Analysis Remains Fatally Incomplete. Proponent’s

revised No-Build Alternative analysis is nothing more than a conclusory argument in

favor of the Project, repeatedly saying only that without the Project “none of its benefits”

and “none of the potential impacts . . . would be realized.” FEIR at 2-13; accord id. at 2-

14. But that is patently obvious, telling the decision-makers nothing they already do not

know. Completely absent from the FEIR’s No-Build Alternative is any data indicating

the noise, air quality, water, and GHG emission levels and impacts that would reasonably

3 Accord ENF Certificate at 5 (directing Proponent to “evaluate a No-Build Alternative, Off-Site

Alternatives, and the Preferred Alternative” including “a comparative analysis . . . which clearly identifies

differences between the environmental impacts associated with each of the alternatives” (emphasis added)). 4 Allen v. Boston Redevelopment Auth., 450 Mass. 242, 257 (2007) (“[T]he purpose of MEPA and the

regulations promulgated thereunder is “to provide meaningful opportunities for public review of the

potential environmental impacts of Projects for which [State] Agency Action is required, and to assist each

Agency in using ... all feasible means to avoid Damage to the Environment or, to the extent Damage to the

Environment cannot be avoided, to minimize and mitigate Damage to the Environment to the maximum

extent practicable.” (original emphasis)).

Page 3 of 11

be expected in June 2018 if the Project were not built.5 But at least for some6—if not

all—of those potential impact categories, it is unreasonable not to expect that 2018 levels

will be meaningfully different, that is, different in a manner that could be reasonably

expected to impact the assessment of the Project’s “potential environmental impacts and

mitigation measures,” than they are today (or last year, when Proponent began its

environmental analysis. This complete lack of future baseline information is reflected in

Proponent’s new FERI Table 2-3 in which 13 of 19 entries for data or analysis related to

the No-Build Alternative are: “NA” or “not applicable.” (In the same way, Table 2-3

simply reiterates for important environmental criteria—air quality, water, and noise—that

potential significant impacts due to the Project will be absent if it is not built.)7

The FEIR’s failings in this respect are particularly noteworthy regarding the reasonably

foreseeable impact on the climate from the Project’s expected actual GHG emissions

which include some 377,000 tons per year of CO2.8 The FEIR fails to include any

analysis whatsoever regarding reasonably expected GHG emissions within the

Commonwealth at any time over the 40-50 year life of the Project in a No-Build

scenario.9 The lack of such information alone is sufficient to block the Secretary’s 301

5 Although not included for comparison in FEIR Section 2.0, such data appears to at least exist regarding

transportation. See DEIR at 10-21 (“To account for future traffic growth in the study area future, No-Build

traffic volumes are developed by increasing the Baseline construction traffic volumes by approximately

3.6% (0.5% compounded annually over seven years).”). But to the extent the FEIR otherwise contains

“existing baseline” data, it is uniformly current or historical data and does not include the reasonable

projections required to “establish[] a future baseline” as 301 C.M.R.11.07(f)(2) requires. 6 For example, based on DCR Water Needs Forecasts, municipal water withdrawals in Bellingham,

Franklin, Medway, Milford and Norfolk, which all withdraw water above Millis, are projected to increase

by at least 2 million gallons per day from 2013 to 2028. See A Regional Evaluation of Water Management

Alternatives to Reduce Streamflow Impacts in the Upper Charles River Watershed (2014) at p. 8 (EFSB 15-

01, Exhibit EX-CRWA-1(7)); EFSB 15-01, Transcript of Evidentiary Hearings (“Tr.”) at 1893. This does

not include increased withdrawals by other towns that also withdraw above Millis. Tr. at 1489-90. 7 Proponents also fail to adequately address DEIR Comments CLF 03, CLF 04, and CLF 05 regarding the

inadequacy of their No-Build Alternative “analysis.” Proponents may not simply claim “ISO thinks the

Project is needed” in response to CLF’s demand that the FEIR’s No Build Alternative should accurately

represent the state of the grid—and including its emissions—were the Project not built. Furthermore, there

is no evidence that the ISO-NE grid would become unreliable except for the presence of the proposed

Project. The maximum load ever experienced by ISO-NE was 28,130 MW in the summer of 2006 (see

FERC, Electric Power Markets: New England (ISO-NE) (available at: http://www.ferc.gov/market-

oversight/mkt-electric/new-england.asp), and ISO-NE expects a peak summer load of 30,000 in 2018

(http://www.iso-ne.com/system-planning/system-forecasting/energy-efficiency-forecast). Excluding the

Project, ISO-NE secured more than 34,495 MW of load-serving capacity (representing 306MW in excess

of the ISO’s installed capacity requirement for reliability) in FCA#9 for 2018-2019. See ISO-NE, Forward

Capacity Auction #9 Results Summary, at 2 (http://www.iso-ne.com/static-assets/documents/2015/02/

fca_9_cso_ flow_diagram.pdf). 8 FEIR, Tech. Appx. H, at 1 (“expected actual” for “Prime Mover (CTG), direct emissions”). 9 Although Proponent suggest that the Project might lead to a decline in regional GHG emissions by

displacing older generators elsewhere if it were to operate at about 6% capacity factor (7 days burning oil),

see FEIR at 2-15 (citing to DEIR, Attch. I (Tierney-Darling Testimony); Exelon Response EFSB-4(1)

Page 4 of 11

C.M.R. 11.07(k) certification given the Secretary’s own recent finding that during that

same time-frame, emissions from the Commonwealth’s electric power sector must

decline by about 400,000 tons CO2 each year in order for the state to meet its Global

Warming Solutions Act (“GWSA”) emissions mandates. See Massachusetts Clean

Energy and Climate Plan for 2020 (Dec. 31, 2015), at 54, fig. 14 (indicating a reduction

in annual electric power sector emissions in Massachusetts from about 12.5 MMTCO2e

in 2020, and 5 MMTCO2e in 2030, to less than 1.25 MMTCO2e in 2050);10 accord id. at

50-51 (“[T]he only viable path” to the deep reductions in GHG emissions required by the

GWSA is “expanded availability of clean energy” in order to achieve “deep reductions by

2030 and a fully decarbonized electric sector by 2050.” (emphasis added)).

The FEIR’s Presents No Feasible Project Alternative. Although Proponent has added

discussion of a single Off-Site Alternative to the Project—the “Everett (Mystic)”

alternative—it still fails to offer for consideration any information regarding a feasible

Project alternative as the law plainly requires. 301 C.M.R.11.07(f)(1) (requiring

“description and analysis” of “all feasible alternatives” to the Project); accord id. at

11.07(f)(3), (4) (requiring analysis of, and in comparison to “feasible alternatives”). And

Proponent’s failure to do so cannot be excused simply because it included certain

alternatives analysis required by the Secretary. The law requires more. Id. at 11.07(f)(1)

(requiring description and analysis of “all feasible alternatives” to the Project “including,

but not limited to those indicated in the [ENF-identified] Scope.” (emphasis added)).

But the Everett (Mystic) Off-Site Alternative plainly fails to satisfy the requirements of

301 C.M.R.11.07(f)(1), (3), and (4) because it is not a feasible alternative: it cannot—

according to Proponent—meet the basic objectives of the Project. FEIR at 2-17 (Table 2-

3) (Does the “Everett (Mystic)” alternative “Meet[] Project Purpose, FCA #9, 195 MW

into SEMA/RI”? Answer: “No”). In order to be feasible, an alternative must meet the

project objectives and do so with less of a potential environmental impact. Ten Residents

v. Boston Redevelopment Auth., 21 Mass. L. Rptr. 324 (2006), at *15 (“It is . . . plain

from both the MEPA statute and the regulations that the purpose of analyzing feasible

alternatives is to determine whether there is a feasible alternative to the project proposal

that will accomplish the objectives of the proponent and satisfy the needs of the project

with less potential environmental impact. G.L. c. 30, § 62B (‘reasonable alternatives to

the proposed project and their environmental consequences’); 301 CMR 11.07(6) (‘the

availability of reasonable alternatives and methods to avoid or minimize potential

environmental impacts’); 301 CMR 11.07(f) (calling for analysis of principal differences

(indicating average annual capacity factor 2019-2030 of 5.87%), Proponent has offered zero evidence that

the Project will displace any GHG emissions in the Commonwealth or elsewhere when operating more than

five times more frequently at its “expected actual” levels of 33% capacity factor (10 days burning oil), see

FERI at 5-2 (Table 5-1); id. at Tech. Appx. H (GHG Calculations), at 2. 10 1 MMTCO2e is equivalent to about 1.1 US short tons.

Page 5 of 11

among feasible alternatives, ‘particularly regarding potential environmental impacts’).”

(emphasis added)).

Thus, because the FEIR does not include any data or analysis regarding any alternative to

the Project that is both feasible and which would present “less of a potential

environmental impact,”11 it does not comply with MEPA and cannot be certified.

The FEIR’s GHG Analysis Does Not Comply with the GHG Policy.

Proponent’s environmental analysis still fails to comply with either the state’s GHG

Policy or the ENF Certificate.

The FEIR Continues to Set the Wrong Baseline for GHG Analysis. Although the FEIR

corrects Proponent’s inexplicable mistake of setting some other project with some other

technology as the Project baseline for GHG analysis, it still fails to set the correct

baseline.

As CLF noted previously, both the ENF Certificate and the GHG Policy require that the

baseline for GHG analysis be the operations and emissions of the proposed Project itself.

The ENF Certificate directs that the “DEIR should provide estimates of GHG emissions

of the facility with [Best Available Control Technology] measures as the Base Case.”

ENF Certificate at 7. That direction is consistent with the state’s GHG Policy which

similarly requires that a project proponent “establish a project baseline for the industrial

component of the project . . . without any mitigation measures (sometimes referred to as

the “business as usual” scenario).” GHG Policy at 6-7.

Without comment or explanation, however, Proponent recently amended the FEIR to set

the Project baseline for GHG emissions at a level far higher than the level at which

Proponent expects the Project to actually operate. By letter on March 3, 2016, Proponent

changed Tables 5-1 and 5-17 to re-designate—for the first time—the Project’s federal

New Source Review maximum allowable emissions level (43% capacity factor; 30 days

burning oil) as the baseline for its GHG analysis. But the GHG Policy directs that a

proponent establish expected operations as the baseline for analysis. GHG Policy at 4

(referencing “Calculation Tool for Direct Emissions from Stationary Combustion

Sources. available at the www.ghgprotocol.org website”).12 And the FEIR make it

11 Although it presents no meaningful data as argued above, the FEIR suggests that the No-Build

Alternative would have few environmental impacts; however it—like the Everett (Mystic) Off-Site

Alternative—is not a “feasible” alternative because it would also expressly fail to achieve the “Project

Purpose, FCA #9, 195 MW into SEMA/RI.” See FEIR at 2-17 (Table 2-3). 12 The WRI “Calculation Tool For Direct Emissions From Stationary Combustion” directs level be set

either by measurement of actual emissions or by estimating actual future activity levels. See Calculation

Tool For Direct Emissions From Stationary Combustion, at 13-34 (available at:

http://www.ghgprotocol.org/files/ghgp/tools/Stationary_Combustion_Guidance_final.pdf).

Page 6 of 11

clear—despite Proponent’s 11th-hour change in baseline designation—that “the Project’s

expected actual operating scenario” is “a 33% capacity factor with 10 days” burning oil

each year. FEIR at 5-1; id., Tech. Appx. H, at 2 (“[e]xpected actual operating

hours/year” of “3,730” or “33%caacity factor, 77.5% annual average load while

operating”).

The FEIR Still Fails to Propose or Analyze Any Meaningful GHG Mitigation. As noted

previously by CLF, the ENF Certificate requires that the DEIR’s GHG analysis must

“clearly demonstrate consistency with the objectives of MEPA review” which includes

documenting “the means by which damage to the environment van be avoided,

minimized and mitigated to the maximum extent feasible.” ENF Certificate at 7.

Similarly, 301 C.M.R.11.07(j) requires that “[t]he EIR shall specify in detail: the

measures to be taken by the Proponent or any other Agency or Person to avoid, minimize,

and mitigate potential environmental impacts.” But the FEIR utterly fails to do so

regarding its direct GHG emissions.

Having correctly used the proposed technology as the baseline emitter, Proponents offer

no mitigation whatsoever for those substantial GHG emissions—of at least 377,000 and

up to 695,875 tons CO2 per year. See FEIR at Table 5-1 (maximum 1-year potential

emissions); id., Tech. Appx. H, at 1 (listing no change between baseline and proposed

direct CO2 emissions from “Prime Mover (CTG)”).

And although Proponent now suggests it will implement a few reductions to the Project’s

expected indirect emissions, see FEIR, Tech. Appx. H, at 1 (listing a reduction in “CO2

tons/year, expected actual” of “0.38%”), such de minimis reductions—less than one-half

of one-percent—cannot be reasonably held to satisfy the legal requirement that the

Secretary ensure that impacts from GHG emissions have been “avoided, minimized and

mitigated to the maximum extent feasible.” ENF Certificate at 7; ENF Certificate at 7;

301 C.M.R.11.07(j), (k).

A number of feasible measures exist that would mitigate the certain damage that the state

has previously determined will flow from the Project’s substantial GHG emissions. In

the Matter of Pioneer Valley Energy Center, LLC, OADR Docket No. 2011-010, 2011

WL 6019096 (Mass. Dept. Env. Prot.) (Nov. 9, 2011), at *2 (“The MEPA GHG Policy

explicitly states (and a considerable body of scientific evidence demonstrates) that GHG

emissions constitute damage to the environment.”); id. (“Hence, Section 61, read in its

entirety, does require findings, not merely consideration, of GHG emissions, as a means

of preventing damage to the environment.” (original emphasis)).

As CLF previously proposed, one such technically and commercially feasible mitigation

measure that would minimize and mitigate the proposed Project’s damage to the

environment as a result of its massive lifetime CO2 emissions profile is the use of

Page 7 of 11

liquefied natural gas, rather than oil, as the Project’s secondary fuel, which would reduce

lifetime CO2 emissions from the Project by between 223,040 tons CO2 (for 136 hours of

annual secondary fuel operations) and up to 1,180,800 tons CO2 should the Facility run

requested in the Petition, for 720 hours of annual secondary fuel operations.13 And

installing LNG facilities, despite the requirement for some additional initial capital

investment,14 would result in an annual cash savings to Proponent across all forecast

potential LNG operating conditions (including when varied for future reasonable price

levels of LNG “FOB Everett” and future reasonable prices for LNG transport to the

Facility).15, 16

Another technically and commercially feasible mitigation measure that would minimize

and mitigate the proposed Project’s damage to the environment as a result of its massive

lifetime CO2 emissions profile is an annual declining emissions cap comparable to that

presented by CLF (as “DCMM 2”) to the Energy Facility Siting Board in the Project

proceeding docketed as EFSB 15-01. Such a measure would reduce expected actual

(33% capacity factor; 240 hours burning oil) CO2 emissions between 2019 and 2049 by

about 5 million tons17 at nominal expense—a net present value cost of 0.5%, or about

13 See EFSB 15-01 Docket Evidence (incorporated by reference herein): RR-CLF-7 (Stix Test.) at 2; Ex.

CLF-2 (Stix Pre-Filed Test.) at 12-15 (“Technical and Economic Viability of LNG as a Winter Reliability

Fuel”); CONFIDENTIAL Attachs. EFSB-CLF-3(1) and RR-EX-CLF-7(1). 14 EFSB 15-01 Docket Evidence (incorporated by reference herein): Ex. CLF-2 (Stix Pre-Filed Test.) at

13:3 - 14:13; CONFIDENTIAL Attach. EFSB-CLF-3(1) (LNG financial feasibility model). 15 EFSB 15-01 Docket Evidence (incorporated by reference herein): RR-CLF-7 (Stix Test.) at 2-3. 16 Although the FEIR suggests that installing LNG at the Project is “is clearly not practical or feasible,”

FEIR at 4-3, the data it for the first time supplies with the FEIR does not support that conclusion. The

extensive data and testimony presented by CLF to the EFSB, see notes 13 and 14 above which CLF

incorporates herein by reference (and which CLF can and will provide to the Secretary if desired),

demonstrates that there is no reasonable support for Proponent’s suggestion (FEIR at 4-3) that sufficient

LNG facilities would necessarily “require” 52 acres of single-use land and four years to implement, at a

cost of “approximately $60 million.” CLF’s data and testimony credibly establish that, if Proponent

wanted to, it could install such facilities at the Project site and within its current development schedule (see

EFSB-G-4), with a net financial benefit to the Project in year one. 17 EFSB 15-01 Docket Evidence (incorporated by reference herein): RR-EFSB-31; CONFIDENTIAL

Attach. RR-EFSB-31(3) (8,105,500 tons CO2 expected total 2019-2049 emissions for 33% “expected

actual” operating level (with 10 days burning oil)); CONFIDENTIAL Attach. RR-EFSB-31(2) (expected

2019-2049 actual emissions with proposed mitigation: 3,192,750 tons CO2).

Page 8 of 11

$1.4 million18—and with no material impact on the Facility’s ability to provide reliable

and cost-efficient energy for the Commonwealth.19

CLF’s evidence regarding the technical and commercial viability of such a declining cap

mitigation measure is unrebutted. And in the absence of any supporting record evidence

(here or before the EFSB), Proponent’s various critiques of the proposed mitigation are

easily dismissed. For example, Proponent suggests that “CLF’s analysis does not provide

a basis for rendering an opinion as to whether CLF’s proposed annual declining GHG

emissions cap is commercially feasible for this Project.” See FEIR, 12-1 (Table 12-1)

(Response to Comment CLF 13, at PDF p.266). But to the contrary, CLF’s analysis does

provide such a basis: it includes all relevant actual costs borne by Proponent, both

published20 and unpublished (e.g., Proponent’s actual estimated variable costs, insurance,

fixed costs, taxes, and book depreciation as provided by Proponent).21

Similarly, Proponent is wrong in suggesting22 that the existence of a declining cap

mitigation measure as a permitted operating condition for the Footprint Power LLC

facility “is not relevant for understanding the commercial/financial implications of such a

cap for a project with an entirely different technological profile and functionality within

the regional electric system.”23 To the contrary, as was also indicated in hearing

testimony before the EFSB,24 the ability of Footprint Power LLC to secure $730 million

18 EFSB 15-01 Docket Evidence (incorporated by reference herein): Ex. CLF-2 (Pre-Filed Testimony of

Christopher Stix) (“Stix Pre-Filed Test.), at 5:3-4 (“[C]ost of [proposed DCMM 2] mitigation would be

quite modest, less than 1% of the present value of the proposed Facility.”), 18:9-2 (“Declining Cap

Mitigation Measure [2] would reduce the present 10 value of the Facility by $1.5 million below the present

value of the Facility operating at a 15% capacity factor for the duration of its expected lifetime. This

represents about 0.5% of the present value of $273.2 million.”); CONFIDENTIAL Attach. RR-EFSB-31(2)

(same); Tr. at 1600:21 – 1601:6 (Stix Test.) (“If you look at the finances of an emissions cap, because most

of the revenues of this plant are coming from capacity payments, the cost of putting in an emissions cap

starting in 2030 is quite small, less than 1 percent of the value of the plant.”); RR-EFSB-31 (“For a nominal

net present value cost of 0.5% (or $1.4 million), DCMM 2 would reduce the proposed Facility’s emissions

by approximately 1,410,750 tons of CO2 between 2019 and 2049 [compared to unmitigated operations at

15% capacity factor], and would also result in no un-offset emissions thereafter for the balance of the

Facility’s planned 40-plus year operating life.”). 19 EFSB 15-01 Docket Evidence (incorporated by reference herein): Ex. CLF-2 (Stix Pre-Filed Test.) at

18:20 - 19:18; Tr. at 1600:21 - 1601:6 (Stix Test.); RR-EFSB-31. 20 E.g., FCA #9 capacity payment pricing; RGGI costs from the most recent auction; ISO‐NE Day Ahead

LMP for West Medway and daily gas and ULSD prices as delivered to West Medway; total Proponent

investment as disclosed by Proponent in its DEIR, FEIR, and Host Community Agreement (see FEIR,

Tech. Appx. C); Proponent’s own calculated tax rate as disclosed to the EFSB (in EFSB-G-12(1)). 21 See EFSB 15-01 Docket Evidence (incorporated by reference herein): in CONFIDENTIAL Responses

CLF‐1‐1(S), CLF‐1‐3(S), CLF-1-4(S), and CLF‐1‐5(R2)). Ex. CLF-2 (Stix Pre-Filed test.) at 19:19 - 21:9;

CONFIDENTIAL Attach. RR-EFSB-31(2) (DCMM 2 Financial Model) 22 See FEIR at 12-1 (Table 12-1) (Response to Comment CLF 13, at PDF p.266). 23 FEIR at 12-1 (Table 12-1) (Response to Comment CLF 13, at PDF p.266). 24 EFSB 15-01 Docket Evidence (incorporated by reference herein): Tr. 1602:1-4 (Stix Test.).

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of 3rd-party, capital market debt and equity financing on a $1 billion project25 with a

similarly structured declining cap mitigation measure in place26 is strong evidence of the

financial and commercial reasonableness of imposing a declining cap mitigation measure

on the proposed Project: First, the two mitigation measures are essentially identical in

structure, allowing operations as anticipated at the Footprint Power LLC facility and the

proposed Project (at baseload and peaking capacity factors respectively) for about ten

years, and then decreasing emissions by about 5% a year starting thereafter, to zero net

emissions in 2050. Second, to the extent it had any, the Footprint Power LLC facility

mitigation measure had more of an impact on project finances than the proposed

declining cap mitigation measure would have on the Project. Because the Footprint

Power LLC plant is a baseload plant (rather than, e.g., a peaking plant), and because it

will receive lower capacity payments ($14.99/kW-mo. versus $17.728/kW-mo. for the

proposed Facility), energy sales—the only revenue stream affected by the proposed

declining cap mitigation measure—account for a greater percentage of Footprint Power

LLC’s lifetime revenue than do payments attributable to its ISO-NE Capacity Supply

Obligation when compared to the proposed Facility. Thus the ability of Footprint Power

LLC to nevertheless secure hundreds of millions of dollars of private debt and equity

funding, which normally represents a higher project cost of capital, with the mitigation

measure in place supports the conclusion that the proposed declining cap mitigation

measure would be less of a financial burden on Proponent, and thus also commercially-

viable and financially reasonable.27

And in the same way, Proponent is mistaken in its assertion that the proposed declining

cap mitigation measure “would artificially limit the output of the plant, and mean that it

would not be able to operate in the place of power plants with worse heat rates and higher

emissions.” FEIR at 12-1 (Table 12-1) (Response to Comment CLF 13, at PDF p.266).

Such mitigation of the Project’s GHG emissions would in no way limit the proposed

Facility’s ability to meet all ISO-NE requirements, or the ability of ISO-NE to dispatch

the proposed Facility at any time (including during a pay-for-performance scarcity

window) or during any year (even after 2049).28 The proposed declining cap mitigation

measure would give Proponent a range of options for compliance, and discretion to

choose among them to ensure economic efficiency.29 If/when emissions approach the

25 See EFSB 15-01 Docket Evidence (incorporated by reference herein): Attach. RR-EFSB-31(5). 26 See EFSB 15-01 Docket Evidence (incorporated by reference herein): Attach. RR-EFSB-31(6)

(Footprint Power Salem Harbor Development LP, EFSB 13-1, Final Decision, Ex. A, Attach. 4)) 27 EFSB 15-01 Docket Evidence (incorporated by reference herein): RR-EFSB-31 (Stix Test.). 28 Id. 29 Id.; accord EFSB 15-01 Docket Evidence (incorporated by reference herein): Attach. RR-EFSB-31(2)

(allowing cap to be met by “limiting actual facility emissions . . . &/or [b]y reducing . . . actual facility-

wide emissions of Exelon’s Mystic Generating Station . . . &/or . . . [b]y retiring the following

credits/allowances . . . [d]iscounted CO2 Operating Allowances earned in years 2018-2046 for actual

facility emissions below the annual CO2 Cap [or] Class I Massachusetts Renewable Energy Certificates”);

Ex. CLF-2 (Stix. Pre-Filed Test.) at 16:17 - 18:3.

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annual cap (in any year after 2030, and for as long as the Project remains in operation),

Proponent could avoid above-cap emissions by including its cap-related mitigation

compliance costs in their required market bids for either the Project (or for Proponent’s

Mystic Generating Station), which would either ensure that the Project (or the Mystic

plant) was not dispatched—directly avoiding additional emissions—or, if it were

dispatched, that Proponent would receive market compensation that included in it its

added cap-related compliance costs.30 In either case, the Project (or the Mystic plant)

would be fully available for dispatch by ISO-NE without restriction or risk of penalty.31

Conclusion

Proponent’s FEIR fails to comply with state law and cannot be certified in its current

form. It provides insufficient No-Build data and analysis to establish a future baseline for

comparison of the Project’s environmental impacts to those of proposed alternatives and

to proposed mitigation as is required by 301 C.M.R. 11.07(f). It offers no feasible

alternative to the Project which present “less of a potential environmental impact” in

violation of the MEPA statute and regulations. Ten Residents v. Boston Redevelopment

Auth., 21 Mass. L. Rptr. 324 (2006), at *15. It establishes an incorrect baseline for all

GHG-related analysis in violation of the GHG Policy. And it fails to meaningfully

discuss feasible, available, cost-effective mitigation measures that would avoid,

minimize, and mitigate potential environmental impacts as required by 301 C.M.R.

11.07(j).32

As a result, the FEIR fails comply with state law and implementing regulations and fails

to provide an adequate basis for required Section 61 Findings that must meaningfully

demonstrate that “all feasible measures to be taken . . . to avoid Damage to the

Environment or, to the extent Damage to the Environment cannot be avoided, to

minimize and mitigate Damage to the Environment to the maximum extent practicable.”

301 C.M.R.11.07(k); In the Matter of Pioneer Valley Energy Center, LLC, at *2

(“Section 61 requires all agencies to ‘minimize damage to the environment.’ To

minimize this damage, when agencies issue permits or take other final actions, they must

30 EFSB 15-01 Docket Evidence (incorporated by reference herein): RR-EFSB-31 (Stix Test.); accord Ex.

CLF-3 (Appx. A to ISO-NE Market Rule 1); Tr. at 268:14 - 269:8 (Sanford Test.). 31 EFSB 15-01 Docket Evidence (incorporated by reference herein): RR-EFSB-31 (Stix Test.); Ex. CLF-2

(Stix. Pre-Filed Test.) at 18:4-6 (“Importantly, with such offsets the [declining cap mitigation measure]

would not limit the operations of the Facility or prevent its dispatch by the ISO‐NE grid operator as might

be needed to ensure system reliability. Instead, it simply shifts the cost of GHG emissions above the cap to

[Proponent].” (emphasis added)). 32 It is no mystery what GHG Policy-compliant analysis looks like for an electric generating facility. See

Exhibit 4 to CLF’s DEIR Comments (identifying and quantifying for the Pioneer Valley Energy Center: the

baseline emissions of the proposed project (§ 4.1.1), identifying and analyzing a viable GHG alternative

using bio-fuels rather than ULSD (§ 4.1.2), and proposing GHG mitigation measures and emission

reductions to reduce the GHG impact of the proposed project (§ 4.1.5)).

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include a finding ‘describing the environmental impact, if any, of the project’ and a

finding that ‘all feasible measures have been taken to avoid or minimize said impact.’ . . .

Section 61, read in its entirety, does require findings, not merely consideration, of GHG

emissions, as a means of preventing damage to the environment.” (original emphasis)).

As a result, the Secretary may not certify the FEIR, unless extensive data and analysis is

submitted as part of a supplemental FEIR which fully complies with state law.

Sincerely,

CONSERVATION LAW FOUNDATION

By:

David Ismay

Staff Attorney

cc: Deirdre.Buckley@state.ma.us

Purvi.Patel@state.ma.us